RONALD W NELSON PA is a Kansas law firm focusing its practice
on complex divorce and other domestic relations disputes, which including
martial and non-marital separation, determination of parentage, child custody
and parenting time, as well as representing parents in international and
interstate child abduction and jurisdictional disputes. Trained in
Collaborative Family law, the attorneys at Ronald W. Nelson PA are Fellows of
the American Academy of Matrimonial Lawyers and the International Academy of
Matrimonial Lawyers. Licensed to practice only in the
State of Kansas |
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Appellate
Practice and Procedure in Kansas: A Guide by Ronald W. Nelson
PA Whether an
appeal should be pursued is a complex and involved
question and it is important that clients know all they can to make the
decision right for themselves. We often hear from clients and other attorneys
about the “need” to file an appeal because of a perceived improper ruling
made by a court, administrative agency or other body charged with making decisions
on important issues. The attorneys at
Ronald W Nelson, PA have extensive experience in handling appeals and
in advising clients – and other attorneys – about the procedures involved in
making an appeal, in deciding what issues are appropriate to appeal, and whether
the value of appealing the decision balances with the cost of pursuing that
appeal. Ronald W. Nelson, the principal of Ronald W Nelson, PA has
handled over eighty appellate cases in both state and federal courts and
frequently advises other attorneys about the appellate process. Although many
appeals are filed in state and federal courts
seeking to overturn a decision perceived wrong, very few appeals actually
result in a reversal of the trial court decision. Because of this fact, it is
critical that anyone considering whether or not to file an appeal know
everything involved in evaluating whether to file an appeal, the issues that
are appropriate for appellate consideration, and how to frame the issues so
that there is a better chance that winnable issues will be
presented to the appellate courts. One of the most
important considerations in deciding whether to appeal a trial court decision
is cost – and the cost of an appeal is usually much more
than imagined. We are often asked why appeals
cost so much money. To answer this
question, it is important to understand that the preparation of an appeal is
much more than merely pointing out to the appellate court that the trial
court made an incorrect decision. Most trial court decisions – and almost all
domestic relations cases – are based on disputed
facts presented by opposing parties, which requires that the trial judge
determine which facts are more likely true than not true. This presents the
first reason why appeals are costly: appellate courts are courts that
determine whether there exists legal error. Because the appellate
courts decide only whether the trial judge committed an error of law, the
appellate courts do not decide – or re-decide – whether the trial judge made
the right “factual decision.” In deciding whether there is “legal error,” the
appellate courts rely upon the trial courts to determine the applicable facts
of a case by “sifting” the evidence and testimony presented so that the
appellate courts don’t have to “rehear” those same disputed allegations. Only
when the appellate court determines that the trial judge did not have any
testimony or evidence sufficient to support a finding of fact will the
appellate courts consider whether the facts determined by a trial judge are
erroneous. The second
reason why appeals are costly is a matter of logic: it stands to reason that
if one “impartial” decision maker has made a particular legal conclusion,
that other impartial decision makers will likely come to the same conclusion.
In finding the
best issues to present to the appellate courts, appellate attorneys must
search out other similar cases that the appeals courts have decided and
explain in written form why those cases are similar or different and why the
proposed application of the law makes more legal sense than the decision made
by the trial judge. Additionally, the way in which those issues are presented to the appeals court and making sure that
the facts of the case are presented in an appropriate manner to the appeals
court are all matters that must be considered and addressed. Because what
issues to appeal the decision whether to file an appeal is an important
decision, our attorneys will review the case and try to help clients
understand what factors should be taken into
consideration before we will recommend whether to appeal a trial court’s
decision. When Judgments are Final for Appeal
Purposes Kansas statutes (KSA 60-258) provide that
the entry of a judgment is subject to the specifications
and requirements of KSA 60-254, which provides that no judgment is effective until
a “journal entry” or “judgment form” is signed by the judge and filed with
the court clerk. Because these statutes require that the judgment must be actually
on file, the time to file an appeal does not begin to run (in civil cases)
until that event occurs. When the “final” journal entry or judgment form is
filed, then the time in which to file the Notice of Appeal begins to run.. Notice of Appeal Kansas law provides that a Notice of Appeal
must be filed within 30 days after the date on which
the final journal entry or judgment form is filed. However, the filing of a
“Motion for New Trial,” a “Motion to Alter or Amend Judgment,” a “Motion to
Reconsider,” and certain other motions authorized by Kansas statutes may
extend the time within which the Notice of Appeal must be filed. The Notice
of Appeal is filed with the Clerk of the District
Court. The filing of the Notice of Appeal is jurisdictional and if the Notice
of Appeal is not filed within this time, the
appellate courts will not consider the appeal timely. Docketing Statement Requirement Within 21 days after the filing of the
Notice of Appeal, a Docketing Statement must be filed
with the Appellate Courts Clerk in Topeka. This Docketing Statement sets out
the basics of the appeal, including a summary of pertinent facts, anticipated
questions of law, and the applicable dates on which actions occurred in the
trial court. The filing of the Docketing Statement is not jurisdictional;
therefore, if the docketing statement is not filed
within 21 days after the Notice of Appeal, the appellate court does not lose
jurisdiction to decide the appeal and it may allow the appeal to proceed. The
matters listed by the appellant as anticipated issues of law for
consideration listed in the docketing statement are not binding, but are only
for the summary information so that the Court has an idea about the nature of
the appeal. Documents to Include with Docketing
Statement At the same time the docketing statement
is prepared, a request for transcript is prepared (if there is any relevant
transcript to prepare) and is served on the appropriate court reporter. This
request for transcript must be attached to the
Docketing Statement, together with certified copies of any judgments from which
appeal is made, any post-judgment motions requesting modification of that
judgment, and any orders relating to those post-trial motions. Time within which Appellant’s Brief Must
be Filed If a transcript is
requested, the appellant’s brief is due to the court of appeals 30
days after the transcript is filed by the court reporter. If no transcript is
requested, if there is no transcript to prepare because the appeal is simply
on the written record, or if the appeal proceeds on an agreed statement of
the parties, then the appellant’s brief is due 40 days after the docketing of
the case. One extension of time on the brief is normally
granted pro forma. The appellate courts will give a maximum of two
extensions of time to each appellant and appellee. Time within with Appellee’s Brief Must be
Filed The appellee (the person defending the
appeal) will have thirty days after receipt of the appellant’s brief in which
to file a response. T the appellee may obtain extensions of time in which to
file that response. The appellee may also request various additional
documents be added to the record on appeal if the
appellee feels the record is not complete or if there are documents in the
original district court file the appellee feels may be cited in the
Appellee’s brief. The Filing of a Reply Brief Finally, upon completion of the
appellee’s brief, the appellant will have an opportunity to file a “reply
brief” to the appellee’s brief if there is new material contained in the appellee’s brief – that
is, if there is argument that could not have been anticipated by the
appellant in preparation of the original Appellant’s brief. Placement by Court on Calendar Upon completion of the briefing,
the appellate courts determine whether the case presents issue of unique or
“new” law and whether the matter should be set on the oral argument or
“summary” docket (in which case the appeal is decided
on the written briefs without additional input from the attorneys or the
parties). Presently, the appellate process
(from the date on which the notice of appeal is filed
until the filing of the initial decision of the appellate courts) is
approximately 18 months. |
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Last updated 06/11/2009 |
